Divided Illinois Supreme Court Abolishes Nullity Rule for Non-Lawyers' Pleadings

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This morning, a sharply divided Illinois Supreme Court held that a pleading signed by a non-lawyer is not automatically null and void. The decision was in Downtown Disposal Services, Inc. v. The City of Chicago.

We previewed the decision yesterday evening, here. The plaintiff was cited four times for violating City ordinances relating to dumpsters. When the plaintiff failed to appear, the Department of Administrative Hearings entered default judgments. The plaintiff sought to vacate the defaults, but the hearing officer denied plaintiff's motion, inviting the plaintiff to appeal.

Filing an appeal seeking administrative review in Chicago merely involves filling out a pre-printed form. Not long after the adverse hearing decision, the president of the plaintiff corporation filed four pro se complaints challenging the hearing decision. The City moved to dismiss, arguing that Illinois law held that any pleading signed by a non-lawyer such as the president was per se null and void. The trial court reluctantly granted the motion. The Appellate Court reversed, holding that the a non-lawyer's complaint was not necessarily void on its face.

In a four-Justice majority opinion written by Justice Anne M. Burke, the Court affirmed the Appellate Court.

The Court had no trouble finding that the president of the plaintiff corporation had engaged in the unauthorized practice of law. The simplicity of the complaint form was irrelevant to the unauthorized practice question, the Court found; legal knowledge and judgment was required to advise the plaintiff as to whether it should appeal in the first place, and that was enough.

The Court noted that other jurisdictions had split on the question of whether non-lawyers' pleadings were automatically void. Some jurisdictions, including the Illinois Appellate Court, have held that a non-lawyer's signature is an incurable defect, and the pleading is void. Other courts have treated the defect as curable, allowing litigants a reasonable time to find a lawyer and amend their complaint.

Following the Seventh Circuit's decision in In re IFC Credit Corp., the Court found that: (1) a lay person's signature on a pleading did not deprive the court of subject matter jurisdiction; and (2) the consequences of the nullity rule would typically be severe, since the statute of limitations might run while the non-lawyer's complaint was pending, and even if it didn't, refiling the action could be expensive.

"We hold there is no automatic nullity rule," the majority held. The Court directed lower courts to consider four factors in evaluating a motion to dismiss: (1) did the nonattorney know that his or her conduct amounted to unauthorized practice; (2) did the corporation moved diligently to correct the problem; (3) was the nonattorney's participation minimal; and (4) did the opposing party suffer prejudice.

Applying its newly-minted test, the majority directed the lower court to reinstate the plaintiff's complaint. The nonattorney's participation was minimal, the majority found; the City suffered no real prejudice, and far from protecting the client, applying the nullity rule would harm the client.

Justice Lloyd A. Karmeier wrote a lengthy and spirited dissent, joined by Chief Justice Thomas L. Kilbride and Justice Robert R. Thomas. The dissenters began with a frontal attack on the majority's holding:

Today, for the first time, the Supreme Court of Illinois has sanctioned the unauthorized practice of law by refusing to follow the nullity rule.

The dissenters argued that the majority had effectively overruled "an unbroken line of precedent dating back before the Civil War" with its holding. Point by point, the dissenters disputed the majority's reading of the various federal and state cases it cited in support of its invalidation of the nullity rule. The rule was " not a novel or unsettled question in Illinois," the dissenters wrote. Even if the majority's conclusion that the dismissal should be discretionary, the dissenters argued, the majority should have remanded the action for the trial court to apply its multi-factor test in the first instance.

The dissenters disputed the majority's application of its newly minted test as well. It was far from clear, they wrote, that the president of the plaintiff corporation was unaware that his signing of the administrative complaints was the unauthorized practice of law, and ignorance of the law was not a defense anyway. The corporation had not acted promptly to rectify the problem with its complaints, the dissenters pointed out, waiting six months to file appearances through an attorney, and another five to seek leave to amend its complaints. Besides, the dissenters argued, the plaintiff had been cited multiple times years earlier, and had still not paid its fines, suggesting that the plaintiff was unworthy of sympathy. Whether or not the nullity rule might be harsh in some cases, the dissenters concluded that it certainly was not in Downtown Disposal.